POUNCEY v. GUILFORD COUNTY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MONICA POUNCEY, )

)

Plaintiff, )

)

v. ) 1:18CV1022

)

GUILFORD COUNTY, )

MARTY LAWING, in his official )

and personal capacities, )

HEMANT DESAI, in his official )

and personal capacities, and )

JEFFREY SOLOMON, in his )

official and personal )

capacities, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before the court is Defendants’ Motion to Dismiss, (Doc.

7), pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. (Doc. 7.) Plaintiff’s Complaint includes eight claims

- two for failure to promote under Title VII and 42 U.S.C.

§ 1981, two for discrimination under Title VII and Section 1981,

and four for retaliation under Title VII and Section 1981. (Doc.

1.) As a part of their motion to dismiss, Defendants attach ten

exhibits. (See Docs. 9, 10.) Plaintiff filed a response to the

Motion to Dismiss which included objections to the exhibits

attached to Defendants’ motion.1 (Docs. 11; 14.) In that

Response, Plaintiff asks the court to strike all of Defendants’

exhibits. (Doc. 14.) Defendants filed a Reply to Plaintiff’s

Response, (Doc. 15), and Plaintiff filed an objection to the

propriety of Defendants’ Reply under the local rules, (Doc. 16).

The issues in Defendants’ Motion to Dismiss, (Doc. 7), and

Plaintiff’s Objection to Defendants’ Reply, (Doc. 16), are all

ripe for ruling. For the reasons stated herein, the court will

grant in part and deny in part Defendants’ Motion to Dismiss.

The court will sustain Plaintiff’s objection to Defendants’

Reply. Finally, the court will not consider any of Defendants’

exhibits.

I. FACTUAL AND PROCEDRUAL BACKGROUND

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint . . . .” Ray

v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (citing King v.

Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016)). The facts

alleged, taken as true, include the following.2

1 Plaintiff originally filed a Notice of Objection, (Doc.

11), which this court denied without prejudice to Plaintiff

raising the objections in the motion to dismiss, (Doc. 13 at 1).

2 These facts are taken only from the Complaint. As will be

explained below, the court will not consider any of Defendants’

exhibits.

A. Background

Plaintiff, Monica Pouncey, is a former employee with

Defendant, Guilford County. (Compl. (Doc. 1) ¶¶ 12, 14, 41.)

Plaintiff is an African American female. (Id. ¶ 11.) Defendants

are Guilford County, North Carolina, (id. ¶ 4), as well as

individual Defendants Marty Lawing, County Manager of Guilford

County; Hemant Desai, Guilford County Chief Information Officer;

and Jeffrey Solomon, the Enterprise Technology Team Lead for

Guilford County, (id. ¶¶ 5-7).

Pouncey started working for Guilford County as a software

engineer in February 2008. (Id. ¶ 12.) In 2011, she became an

email administrator on the Enterprise Technology Team. (Id.

¶¶ 14, 15.) Solomon became Pouncey’s supervisor in 2014. (Id.

¶ 15.) At that time, the Enterprise Technology Team that Solomon

led consisted of four employees: two white, and two African

American. (Id. ¶ 16.)

After Solomon began as the team leader, he started

excluding Pouncey and the other African American employee from

projects, communications, and meetings. (Id. ¶ 17.) Solomon also

spoke to the African American employees in a disrespectful tone

that he did not use with white employees. (Id. ¶ 18.) Requests

for training by white employees were granted, while requests by

African American employees were denied. (Id. ¶ 19.)

B. The 2016 Position

In early 2016, Pouncey saw a posting for a senior software

engineer position; this was a higher-level position, with higher

pay, in the same department where Pouncey was working. (Id.

¶ 20.) The opening was removed before the application deadline

and before Pouncey had applied; soon after the opening was

removed, Solomon and Desai announced they had given the job to

one of Pouncey’s white teammates. (Id. ¶ 21.)

Pouncey asked Desai why the position had been removed

early. (Id. ¶ 22.) He responded that he did not think she was

interested in the position and that, in any event, she was not

qualified. (Id.) Around this time, Pouncey filed a complaint

with human resources (“HR”); Pouncey complained about the fact

that the position had been closed before the deadline and before

she could apply. (Id. ¶ 24.) The position was then reopened to

allow Pouncey to apply. (Id. ¶ 25.)

Pouncey was not selected for the position. (Id.) Instead,

the same white employee who was originally selected still got

the job. (Id.) Pouncey had been with Guilford County’s

technology department longer than the selected employee and had

“more experience overall.” (Id. ¶¶ 12, 23.) When Pouncey asked

why she had not been selected, she was told she was “not

knowledgeable enough.” (Id. ¶ 28.)

C. Alleged Retaliation by Solomon

Solomon “seemed particularly angry” with Pouncey after she

filed her grievance with HR. (Id. ¶ 27.) He “began excluding her

from emails and meetings that were necessary for her job.” (Id.)

Pouncey also asked Solomon for training to remedy the fact she

was “not knowledgeable enough,” but Solomon again denied her

request. (Id.)

D. 2017 Position

In September 2017, there was another senior software

engineer position that opened. (Id. ¶ 29.) The only two

applicants were Pouncey and the other white employee on the

Enterprise Team. (Id.) This white employee had even less

experience and time with Guilford County than the previous white

applicant, and “far less than Pouncey.” (Id. ¶ 30.) Pouncey was

an “applicant[]” for the position, (id. ¶ 29), but she was

apparently terminated before the hiring decision was made, (id.

¶¶ 51, 56, 60, 65.)

E. Investigation and Termination

On September 28, 2017, Pouncey was brought into a meeting

with the Guilford County HR Manager, Ray Willis, and Desai to

discuss a suspected violation of county policies. (Id. ¶ 31.)

Desai and Willis accused Pouncey of giving herself access to

email inboxes without the users’ permission, all in an effort to

gain an advantage in the hiring process for the 2017 Position.

(Id. ¶¶ 31, 39.) Pouncey asked Willis and Desai to provide the

policy she had violated, but they did not. (Id. ¶ 32.)

Pouncey, as an email administrator, regularly had to access

inboxes to fix email problems. (Id. ¶ 33.) Pouncey admitted to

accessing the inboxes but allegedly provided documents proving

she was working on an ongoing issue “with help from Microsoft.”

(Id. ¶ 34.) Pouncey also alleges that of the email inboxes she

accessed, none of them belonged to anyone who played a role in

the hiring decision for the 2017 position. (Id. ¶ 40.) Pouncey

was terminated, and on October 26, 2017, she appealed her

termination to Lawing, but Lawing upheld the termination. (Id.

¶ 41.) After she was terminated, Pouncey was contacted by

concerned coworkers who overheard Solomon claiming he was going

to have Pouncey arrested. (Id. ¶ 43.) Solomon had also allegedly

been gloating about Pouncey’s termination. (Id. ¶ 42.)

F. Procedural History

Pouncey filed her EEOC charge on February 5, 2018, (id.

¶ 44), and received her right-to-sue letter on September 21,

2018, (id. ¶ 46). Pouncey filed suit in this court on

December 17, 2018. (Id. at 12.) Pouncey brings eight claims:

Failure to Promote under Title VII (Claim One); Failure to

Promote under 42 U.S.C. § 1981 (Claim Two); Retaliation based on

Failure to Promote under Title VII (Claim Three); Retaliation

based on Failure to Promote under 42 U.S.C. § 1981 (Claim Four);

Discrimination under Title VII (Claim Five); Discrimination

under 42 U.S.C. § 1981 (Claim Six); Retaliation based on her

termination, under Title VII (Claim Seven); and Retaliation

based on her termination, under 42 U.S.C. § 1981 (Claim Eight).

Defendants filed their motion to dismiss pursuant to Fed. R.

Civ. P. 12(b)(6), (Doc. 7), as well as a supporting memorandum,

(Defs.’ Br. in Supp. of Mot. to Dismiss (“Defs.’ Br.”) (Doc.

8)). Attached to the memorandum are ten exhibits. (Docs. 9, 10.)

Plaintiff objected to the inclusion of the exhibits in a

separate objection. (Doc. 11.) The court summarily overruled the

objection without prejudice, (Doc. 13), citing to Local Rule

7.6. Plaintiff then refiled a response to Defendants’ motion to

dismiss that included several objections to Defendants’ exhibits

and requested this court to strike all exhibits. (Pl.’s

Objections and Br. in Response to Defs.’ Mot. to Dismiss (“Pl.’s

Resp.”) (Doc. 14).)3 Defendants filed a reply, (Doc. 15), to

which Pouncey objected, citing Local Rule 7.3, (Doc. 16).

3 While Plaintiff requests that the court “strike” the

exhibits, this court only finds it necessary to determine

whether any exhibits should be considered in ruling on

Defendants’ motion to dismiss. As will be explained, only

Exhibit Seven is properly before the court, though the court

will decline to consider it.

II. MATERIALS PROPERLY BEFORE THE COURT

Before turning to the motion to dismiss, the court will

first address Plaintiff’s objection to Defendants’ exhibits as

well as Plaintiff’s request to strike those exhibits. Following

that analysis, the court will also address Plaintiff’s

objections to Defendants’ Reply.

A. Defendants’ Exhibits

In their memorandum in support of their motion to dismiss,

Defendants rely heavily on materials they provided that are

outside the Complaint. (See generally Defs.’ Br. (Doc. 8).)

Citing to Stewart v. Johnson, 125 F. Supp. 3d 554 (M.D.N.C.

2015), Defendants argue that this court may take judicial notice

of these documents without converting their motion into one for

summary judgment. (Defs.’ Br. (Doc. 8) at 2.) Plaintiff

disagrees, arguing that the documents provided are not central

to her claim nor are they sufficiently referred to in her

Complaint; she further argues that these exhibits are not

adequately authenticated to permit their use at the motion to

dismiss stage. (Pl.’s Resp. (Doc. 14) at 4, 9–11.) Making these

arguments, Plaintiff requests the court to strike all of the

exhibits. (Id. at 4.) For the reasons stated below, the court

finds that only Plaintiff’s Human Resources (“HR”) Complaint

Form, (Defs.’ Br. (Doc. 8), Exhibit Seven, HR Complaint (“HR

Compl.”) (Doc. 10-2)), can be properly considered at this phase,

though the court will decline to do so.

A court dealing with a motion to dismiss may only consider

“public records, documents central to plaintiff's claim, and

documents sufficiently referred to in the complaint”; even with

those types of materials, a court may only consider them “so

long as the authenticity of these documents is not disputed.”

Stewart, 125 F. Supp. 3d at 558 (quoting Witthohn v. Fed. Ins.

Co., 164 F. App’x 395, 396 (4th Cir. 2006) (per curiam)); see

also Gasner v. Cty. of Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va.

1995) (noting that the use of such materials has “but one

limitation: the document must be of unquestioned authenticity”).

The types of materials that qualify for this narrow exception

include widely disseminated publications, see Phillips v. LCI

Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999) (considering a

Dow Jones article relied on in a complaint alleging securities

fraud), as well as documents the plaintiff herself helped create

or assented to at another time. See Alt. Energy, Inc. v. St.

Paul Fire & Marine Ins. Co., 267 F.3d 30, 34 (1st Cir. 2001)

(relying on a previous settlement agreement whose authenticity

was not questioned by either party).

Defendants rely exclusively on Stewart in attempting to

convince this court to consider their extraneous materials.

(Defs.’ Br. (Doc. 8) at 2.) It is noteworthy that the Stewart

court cited cases where the materials included court records,

Witthohn, 164 F. App'x at 397, and a widely published news

article, Phillips, 190 F.3d at 618. Stewart itself dealt with

emails written by the plaintiff and notice of an official agency

decision, and neither party challenged the exhibits’

authenticity. Stewart, 125 F. Supp. 3d at 558.

Defendants rely on Stewart to argue a host of materials

that are clearly improper at this stage of the proceedings, as

briefly outlined above and more specifically explained below.

Following Plaintiff’s objections to the materials attached to

Defendants’ brief, Defendants filed a reply. In that reply

brief, Defendants cast a number of unfounded and unhelpful

aspersions on Plaintiff’s brief. (See, e.g., Defs.’ Reply (Doc.

15) at 3 (“Plaintiff’s puerile arguments . . .”), and at 9 n.5

(“Plaintiff has been overwhelmingly aggressive . . . . ”).) In

all candor, this language is not helpful to the court, nor is it

consistent with the court’s reaction to the briefing. Counsel

for Defendants would be well-advised to recall the holding of

Iqbal — it is facts, not conclusions, that are persuasive. Given

all of the hearsay statements and the absence of any persuasive

supporting authority, Defense attorneys’ arguments reflect a

gross misunderstanding of relevant facts at this stage of the

proceedings and Stewart does not save Defendants’ arguments.

In their reply brief, Defendants attempt to convince this

court with new arguments, including encouraging this court to

take judicial notice of certain documents pursuant to Fed. R.

Evid. 201. (See Defs.’ Reply (Doc. 15) at 2–8.) Even assuming

that rule applies, the documents Defendants claim are public

records are not properly authenticated. See, e.g., Fed. R. Evid.

902. This court will not accept counsel’s unilateral

authentication for consideration of the exhibits or in taking

judicial notice. Nevertheless, in spite of the foregoing, this

court will address each document in turn, beginning with the one

document this court finds could be appropriate for

consideration.

Only one document put forward by Defendants might meet the

criteria outlined above: Plaintiff’s own HR complaint. (HR

Compl. (Doc. 10-2).) This document was produced by Plaintiff and

serves as the basis for all her retaliation claims. (Compl.

(Doc. 1) ¶¶ 24, 27–28, 57, 62, 75, 80.) Though Plaintiff raises

some perfunctory authenticity objections to all the exhibits,

Plaintiff raises no specific objection to the authenticity of a

document she helped create and submitted to her employer. It

bears her name and her signature. (HR Compl. (Doc. 10-2).) It is

the only document the court could classify as being “of

unquestioned authenticity.” Gasner, 162 F.R.D. at 282. Though

Exhibit Seven could be properly considered, it contains no

information that alters this court’s 12(b)(6) analysis.

Therefore, in the interest of simplicity, the court declines to

consider Exhibit Seven.

The rest of Defendants’ proffered exhibits do not qualify

for consideration at this stage without converting Defendants’

motion to one for summary judgment. See Blankenship v. Manchin,

471 F.3d 523, 526 (4th Cir. 2006).

Starting with Exhibit One, a “Merit Increase Spreadsheet,”

(Ex. 1, Doc. 9-1), the document lacks any foundation as to its

authenticity. It is not clear Plaintiff ever saw this

spreadsheet prior to filing her complaint. Though she may have

been aware of its contents in that she knew who her coworkers

were, this exhibit is (1) not self-explanatory and (2) lacks

assurances of its authenticity in that it was not widely

available, is not a public record in the way a court record or

agency decision is, and Plaintiff played no role in producing

it. Exhibit One will not be considered by the court.

In Exhibits Two, Three, and Eight, Defendants provide the

internal job posting for the first senior software engineer

position, (Ex. 3 (Doc. 9-3)), the email announcing the first

posting, (Ex. 2 (Doc. 9-2)), and the internal posting for the

second senior software engineer position, (Ex. 8 (Doc. 10-3)).

Plaintiff may have seen these documents or something like them,

but they, too, lack the requisite foundation of authenticity.

Plaintiff objects to their inclusion, see Stewart, 125 F. Supp.

3d at 558, and Defendants have not shown how they would qualify

under Fed. R. Evid. 901. The court will not consider Exhibits

Two, Three, or Eight.

Exhibits Four, Five, and Nine are also problematic. In

those, Defendants provide several spreadsheets showing when

application windows were opened, (Ex. 4 (Doc. 9-4)), and who

applied for the two senior software engineer positions, (Ex. 5

(Doc. 9-5); Ex. 9 (Doc. 10-4)). Exhibits Five and Nine both

contain captions listing them as “Internal to Department Only.”

(Id.) By their own terms, these are not widely available public

records. The fact that they are generated by an employer who

happens to be a public agency does not change the conclusion.

The court will therefore not consider Exhibits Four, Five, or

Nine.

In Exhibit Six, Defendants provide excerpts from its

policies regarding recruitment and hiring. (Ex. 6 (Doc. 10-1).)

For the same reasons the court will not consider Exhibits Two,

Three, or Eight, it will also not consider Exhibit Six.

Lastly, in Exhibit Ten, Defendants provide a copy of

Plaintiff’s termination form. (Ex. 10 (Doc. 10-5).) The form has

her name typed into the “Employee Name” space, but it lacks her

signature or a date next to her signature. (Id.) The form does

include the signature of the “Department Director.” (Id.) The

form expressly calls for Plaintiff’s signature. It does not have

it, but the form is already signed by an opposing party. This is

enough to conclude that the form lacks assurances of its

authenticity.4 The court will not consider Exhibit Ten.

In conclusion, only Exhibit Seven, Plaintiff’s HR

Complaint, (Doc. 10-2), could be considered by the court in its

analysis of Defendants’ Motion to Dismiss. Since that Exhibit

would have no effect on the court’s analysis, however, it

declines to consider it. No other exhibits should or will be

considered by the court.

The court now turns to Defendants’ Reply and Plaintiff’s

objection to that Reply.

B. Defendants’ Reply Brief and the Attached Exhibit

Defendants filed a Reply Brief that raised new arguments in

an effort to convince the court that the exhibits in their

4 The court also notes that the form’s narrative explaining

Plaintiff’s termination contains information that will be

addressed in discovery, yet that critical information has been

redacted by Defendants. (Defs.’ Br. (Doc. 8) Ex. 10, Termination

Form (Doc 10-5).) According to Defendants, that is necessarily

so because “[t]he written copy of the narrative of the final

decision setting forth the specific acts that were the basis of

the dismissal have not yet been disclosed publicly.” (Defs.’ Br.

(Doc. 8) at 8 n.5.) As noted by the Third Circuit, the exception

that allows materials outside the complaint exists, in part, to

ensure plaintiffs do not get to selectively quote from documents

in a way that is disingenuous and misleading. In re Burlington

Coat Factory Secs. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

That purpose would be turned on its head by allowing Defendants

to provide some, but not all, of this critical document. The

court also notes that, even though the facts surrounding

Plaintiff’s termination are apparently not ready for public

disclosure, Defendants dedicate a significant portion of their

brief to just such facts. (See Defs.’ Br. (Doc. 8) at 6–8.)

motion were sufficiently authenticated to fit the exception

described in Stewart. (Doc. 15.) Plaintiff, pursuant to Local

Rule of Civil Procedure 7.3(h), objects to two parts of

Defendants’ Reply: (1) Defendants’ raising of new matters in the

form of arguments based on Federal Rules of Evidence 201 and

801, and (2) the use of a new exhibit in their reply. (Doc. 16

at 1–2.) Plaintiff does not move this court to strike the Reply.

(Id.) The court will sustain Plaintiff’s objections and will

therefore not consider Defendants’ Reply in its analysis.

Local Rule 7.3(h) governs reply briefs and states that “[a]

reply brief is limited to discussion of matters newly raised in

the response.” LR7.3(h). Courts in this district interpreting

Local Rule7.3(h) have consistently held that “[r]eply briefs

. . . may not inject new grounds” for argument.” Triad Int'l

Maint. Corp. v. Aim Aviation, Inc., 473 F. Supp. 2d 666, 670 n.1

(M.D.N.C. 2006). It is also improper, under Local Rule 7.3(h),

to wait until a reply brief to provide support for an

unsupported argument made in a party’s first motion. See Jarvis

v. Stewart, No. 1:04CV00642, 2005 WL 3088589, at *1 (M.D.N.C.

Nov. 17, 2005). Finally, as Local Rule 7.3(h) itself declares,

replies are limited to matters “newly raised” in a responsive

pleading. Henry v. N.C. Acupuncture Licensing Bd., No.

1:15CV831, 2017 WL 401234, at *4 (M.D.N.C. Jan. 30, 2017). In

sum, Local Rule 7.3(h) exists to give the replying party a

chance to rebut newly raised arguments, not to give the replying

party an unfair advantage in having a chance to make new

arguments that should have been raised initially. See id.; see

also Tyndall v. Maynor, 288 F.R.D. 103, 108 (M.D.N.C. 2013);

Campbell v. Town of S. Pines, No. 1:03CV00892, 2005 WL 1802405,

at *21 (M.D.N.C. July 28, 2005).

Here, Defendants asserted their right to use exhibits in

their original motion but provided minimal support for that

assertion. (Defs.’ Br. (Doc. 8) at 2.) The matter of

authenticity was indeed raised by Defendants in their brief.

(Id.) Plaintiff addressed this argument in her Response. (Pl.’s

Resp. (Doc. 14) at 4, 10–12.) In their reply, Defendants put

forward new arguments to support their contention that their

exhibits fit under the exception outlined in Stewart. (Doc. 15.)

This is precisely the kind of briefing tactic that Local Rule

7.3(h) seeks to prevent. The court will therefore not consider

Defendants’ Reply, (Doc. 15), or its additional exhibit, (Doc.

15-1).

III. MOTION TO DISMISS ANALYSIS

A. Standard of Review

Defendants move to dismiss the Complaint under Federal Rule

of Civil Procedure 12(b)(6).

A plaintiff’s complaint only needs to include “a short and

plain statement of the claim showing that he is entitled to

relief.” Glover v. United Parcel Serv., Inc., Civil Action No.

6:16-1985-TMC, 2017 WL 1160420, at *2 (D.S.C. Mar. 29, 2017)

(quoting Fed. R. Civ. P. 8(a)(2)) (alterations in original). To

survive a Rule 12(b)(6) motion, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is plausible on its face if

“the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable” and

demonstrates “more than a sheer possibility that a defendant has

acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 556–57). When ruling on a motion to dismiss, this court

accepts the complaint’s factual allegations as true. Iqbal, 556

U.S. at 678. Further, this court liberally construes “the

complaint, including all reasonable inferences therefrom, . . .

in plaintiff’s favor.” Estate of Williams-Moore v. All. One

Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.

2004) (citation omitted). This court does not, however, accept

legal conclusions as true, and “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678.

Employment discrimination complaints must meet this plausibility

standard; however, the plaintiff is not required to make out a

prima facie case of discrimination or satisfy any heightened

pleading requirements at the motion to dismiss stage.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); McCleary-

Evans v. Md. Dep’t of Transp., 780 F.3d 582, 584–85 (4th Cir.

2015). The plaintiff need only plead facts that permit the court

to reasonably infer each element of the prima facie case.

McCleary-Evans, 780 F.3d at 585; see also Coleman v. Md. Ct.

App., 626 F.3d 187, 191 (4th Cir. 2010) (stating that a

complaint must “assert facts establishing the plausibility” that

plaintiff was terminated based on race).

B. Individual Defendants

Before addressing the underlying claims, the court first

addresses Plaintiff’s suit against individual defendants.

Plaintiff is proceeding against Defendants Lawing, Desai, and

Solomon in both their official and personal capacities. (Compl.

(Doc. 1) at 1.) For the reasons stated below, the court will

dismiss all Title VII claims against the individual defendants,

but the court will deny Defendants’ motion as to the Section

1981 claims against individual defendants.

“Supervisors are not liable in their individual capacities

for Title VII violations.” Lissau v. S. Food Serv., Inc., 159

F.3d 177, 180 (4th Cir. 1998) (emphasis added); Blakney v. N.C.

A&T State Univ., No. 1:17CV874, 2019 WL 1284006, at *7 (M.D.N.C.

Mar. 20, 2019) (citing Birkbeck v. Marvel Lighting Corp., 30

F.3d 507, 510-11 (4th Cir. 1994); Lissau, 159 F.3d at 178). For

this reason, all Title VII claims against defendants in their

personal capacities will be dismissed.

Though there is some dispute about whether supervisors may

be sued individually in their official capacities under Title

VII,5 this court is unpersuaded that Lissau does not also

prohibit such suits. See Blakney, 2019 WL 1284006, at *8 n.11;

Lane v. Lucent Techs., Inc., 388 F. Supp. 2d 590, 595 (M.D.N.C.

2005); Jones v. Tyson Foods, Inc., 378 F. Supp. 2d 705, 708

(E.D. Va. 2004), aff'd, 126 F. App'x 106 (4th Cir. 2005) (“The

Fourth Circuit's decision in Lissau makes it clear that an

employee who claims that she has been sexually harassed in the

workplace must make her claim against her employer and not

against the supervisor whom she claims sexually harassed her.”).

Following the reasoning of these cases, this court will dismiss

all Title VII claims against individual defendants in their

5 See Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.

1989) vacated on other grounds, Paroline v. Unisys Corp., 900

F.2d 27 (4th Cir. 1990) (en banc) (holding that individuals may

be held liable for Title VII violations as “employers” as long

as the individual “serves in a supervisory position and

exercises significant control over the plaintiff’s hiring,

firing or conditions of employment,” but failing to discern

between individuals being sued in an individual versus official

capacity); Scannell v. Bel Air Police Dep’t, 968 F. Supp. 1059,

1067 (D. Md. 1997) (collecting cases) (“[A] long line of

authority makes plain that individuals may be sued in their

official capacity if they are substantially identified with the

defendant organization named in the EEOC charge.”).

official capacities as well.

As for Defendants’ motion to dismiss any Section 1981

claims against the individual defendants, the court denies that

motion for failure to comply with the Local Rules. Defendants’

brief on Section 1981 and individual liability is completely

devoid of citations to any supporting authorities. (See Defs.’

Br. (Doc. 8) at 22.) That portion of Defendants’ opening brief

is therefore in violation of Local Rule of Civil Procedure 7.2.

Local Rule 7.2(a)(4) requires opening briefs to contain “[t]he

argument, which shall refer to all statutes, rules, and

authorities relied upon.” LR7.2(a)(4); see also Pettiford v.

City of Greensboro, 556 F. Supp. 2d 512, 531 n.22 (M.D.N.C.

2008) (noting that failure to quote specific evidentiary rules

in an objection could result in a failure to preserve the

issue). “Judges are not expected to be mindreaders.

Consequently, a litigant has an obligation to spell out its

arguments squarely and distinctly or else forever hold its

peace.” Kirkman v. Tison, No. 1:09CV886, 2012 WL 4891624, at *4

(M.D.N.C. Oct. 15, 2012) (alterations in original) (quoting

Rivera–Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)).

Instead of trying to read Defendants’ collective mind regarding

their arguments against individual liability under Section 1981,

a particularly complex issue,6 the court will deny the motion to

dismiss Plaintiff’s Section 1981 claims against the individual

defendants; however, where Plaintiff has failed to plausibly

allege any claim at all, those claims will be dismissed as to

all defendants. As explained below, Plaintiff has failed to

plausibly allege any retaliation claim, so those claims (Claims

Three, Four, Seven, and Eight) will be dismissed as to all

Defendants. Since Plaintiff has plausibly alleged her Section

1981 failure-to-promote (Claim Two) and wrongful termination

(Claim Six) claims, the motion to dismiss those claims as

against the individual defendants will be denied without

prejudice.

C. Analysis of Plaintiff’s Claims

The court will now turn to the analysis of Plaintiff’s

underlying claims.

Title VII and Section 1981 each prohibit employment

discrimination on the basis of race. 42 U.S.C. § 2000e-2(a)(1);

42 U.S.C. § 1981. A race-based employment discrimination claim

must assert that the plaintiff “belongs to a racial minority”

6 This is especially true in the Fourth Circuit. See Howell

v. N.C. Cent. Univ., No. 1:16CV576, 2017 WL 2861133, at *12

(M.D.N.C. July 5, 2017) (“[T]here is an absence of controlling

precedent on the specific question whether § 1981 claims against

government officials in their personal capacities are

precluded.” (internal quotations and citations omitted)).

and was either not hired, fired, or suffered some adverse

employment action due to his race. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973); see also Thompson v. Potomac

Elec. Power Co., 312 F.3d 645, 649 n.1 (4th Cir. 2002) (stating

that the legal standard is the same under both Title VII and

Section 1981).

1. Claims One and Two: Failure to Promote (Title VII

and Section 1981)

Plaintiff’s first and second claims allege discrimination

in Defendants’ failure to hire her for the senior software

engineer position that was posted in September 2017. (Compl.

(Doc. 1) ¶¶ 29, 48–56.)7 Defendants, relying upon facts that are

not properly before the court on this motion to dismiss, argue

that Plaintiff was terminated for nondiscriminatory reasons

before a hiring decision was made. (Defs.’ Br. (Doc. 8) at 6–7.)

7 The court notes that Plaintiff does not expressly tie her

claim to the September 2017 posting, but only does so

implicitly. (See (Compl. (Doc. 1) ¶¶ 51, 56 (“Pouncey was

terminated before she could apply . . . .”).) Indeed, Plaintiff

could not now sue under Title VII for a failure to promote in

May 2016 since she did not file her EEOC Charge until

February 5, 2018. “A charge under this section shall be filed

within one hundred and eighty days after the alleged unlawful

employment practice occurred . . . .” 42 U.S.C. § 2000e-5(e)(1).

An EEOC charge must be filed within 180 days of each discrete

action of discrimination. Id.; Nat'l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 114 (2002). Failure to promote is a

discrete act that must be covered by the EEOC charge. Morgan,

536 U.S. at 114. As for Plaintiff’s Section 1981 claims, they

are not based on the May 2016 posting, so the court does not

address that issue in this Memorandum Opinion and Order.

Again referring to facts not before this court, Defendants

further argue that Plaintiff could not have known if she was

more qualified than the other candidates, and that the reason

for Plaintiff’s termination was nondiscriminatory. (Id. at 20.)

Defendants argue that Plaintiff herself admits to the

nondiscriminatory reason for her termination. (Id. (citing

Compl. (Doc. 1) ¶ 34).) Because this court will not consider

Defendants’ exhibits, and Defendants’ arguments rely upon facts

not before this court, this argument is not persuasive.

This court finds that Plaintiff has plausibly alleged a

claim for failure to promote under both Title VII and Section

1981. Because failure to promote claims under Title VII and

Section 1981 are analyzed under the same framework, the court

directs the following analysis at both claims. See Bryant v.

Aiken Reg'l Med. Ctrs Inc., 333 F.3d 536, 544–45 (4th Cir.

2003).

Title VII makes it “an unlawful employment practice for an

employer . . . to discriminate against any individual with

respect to [her] compensation, terms, conditions, or privileges

of employment, because of such individual's race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Under that provision, it is unlawful for an employer to not

promote an employee for racially discriminatory reasons. See,

e.g., Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994). In order

for a plaintiff to make out a prima facie case of failure to

promote based on race, she must allege facts that allow this

court to infer the following elements: “(1) that she is a member

of a protected group; (2) that she applied for the position in

question; (3) that she was qualified for the position; and (4)

that [defendant] rejected her for the position under

circumstances giving rise to an inference of unlawful

discrimination.” Robbins v. Rowan Vocational Opportunities,

Inc., No. 1:16CV310, 2018 WL 2338795, at *3 (M.D.N.C. May 23,

2018) (citing Carter, 33 F.3d at 458). These elements are not

“intended to be rigid, mechanized or ritualistic.” See

Swierkiewicz, 534 U.S. at 512.

There is no dispute that Plaintiff, an African American

female, is a member of a protected class. Apparently, there is

also no dispute that Plaintiff applied for the senior software

engineer position that was posted in September 2017.8 Defendants

do dispute Plaintiff’s allegations that she was qualified for

the position and that she was rejected for the position under

circumstances giving rise to an inference of unlawful

discrimination.

a. Third Element: Qualified for Position

Regarding qualifications for a position, a plaintiff’s raw

assertion that she was qualified is insufficient to meet the

12(b)(6) standard. See McKissick-Melton v. N.C. Cent. Univ., No.

1:16-CV-605, 2016 WL 6806234, at *2–3 (M.D.N.C. Nov. 17, 2016);

McCaskey v. Henry, No. 3:10-CV-390-GCM, 2012 WL 1118851, at *3

(W.D.N.C. Apr. 3, 2012). At the motion to dismiss stage,

however, a plaintiff need not conclusively establish that they

were as or more qualified for the position than the employee who

8 Plaintiff is not consistent in her allegations about

whether she applied for the position. In her Complaint, she

never expressly states that she applied for the September 2017

position, only alleging once that she was one of two

“applicants” for the position. (Compl. (Doc. 1) ¶ 29.) On the

other hand, Plaintiff states three times that she “would have

applied . . . had she not been terminated.” (Id. ¶¶ 49, 54, 58.)

In her Response to Defendants’ motion to dismiss, Plaintiff now

claims she applied for the September 2017 position. (Pl.’s Resp.

(Doc. 14) at 15.) To support this proposition, Plaintiff cites

not her Complaint, but Defendants’ motion to dismiss. (Id.)

Despite these inconsistencies, when viewing the Complaint in a

light most favorable to Plaintiff, the court concludes that she

has adequately alleged that she applied for the September 2017

position. The facts as determined at a later stage may establish

that this finding is incorrect.

was promoted. See Alexander v. City of Greensboro, 762 F. Supp.

2d 764, 795 (M.D.N.C. 2011). A plaintiff must only allege

sufficient facts to support the reasonable inference that they

were at least as qualified for the position as the chosen

candidate, see id., and thus raise the right to relief “above

the speculative level,” McCleary-Evans, 780 F.3d at 585 (quoting

Twombly, 550 U.S. at 555).

On this prong, Plaintiff has alleged enough facts to raise

her right to relief above the speculative level. At the time she

applied for the September 2017 software engineer position, she

had been with the Guilford County technology department for more

than eight years. (See Compl. (Doc. 1) ¶ 12.)9 She first served

as a software engineer, then as an email administrator. (Id.

¶¶ 12, 14.) According to the Complaint, when she applied for the

September 2017 senior engineer position, the only other

candidate was someone with less experience and less time

employed with Guilford County. (Id. ¶ 30.) As in Alexander, it

is unclear what qualifications this other candidate possessed,

9 Of course, length of tenure with an employer is not,

without more, necessarily enough to establish one’s

qualification for a job. See, e.g., Anderson v. Westinghouse

Savannah River Co., 406 F.3d 248, 270 (4th Cir. 2005). With

certain exceptions, the qualifications for the position that

were actually set by Defendants will eventually control the

analysis. Id. At this stage, however, Plaintiff’s experience in

the same department where she would have been working in the new

position is a relevant fact.

but that employee was allegedly afforded training that was

denied to Plaintiff and the other African American on the

Enterprise Technology Team. (Id. ¶ 19.) These allegations are

enough at this stage. See Taylor v. N.C. Dep't of Revenue, No.

3:12-CV-860, 2014 WL 1315990, at *2 (W.D.N.C. Apr. 1, 2014).

Indeed, even the Fourth Circuit, when discussing Swierkiewicz,

seemed to suggest that similar allegations would plausibly

support a claim for failure to promote. See McCleary-Evans, 780

F.3d at 586 (“Swierkiewicz alleged specifically that the new

chief underwriting officer was ‘less experienced and less

qualified’ for the position because he ‘had only one year of

underwriting experience at the time he was promoted,’ whereas

Swierkiewicz ‘had 26 years of experience in the insurance

industry.’ . . . [T]his last detail is precisely the kind of

allegation that is missing from McCleary–Evans' complaint

. . . .”).

Plaintiff herself does raise a possible issue with her

qualification for both the 2016 and 2017 positions. After she

was not selected for the 2016 position, Plaintiff alleges she

was informed she was “not knowledgeable enough” for the job.

(Compl. (Doc. 1) ¶ 26.) This statement does not change the

analysis at this phase — Plaintiff also alleges that African

American employees were denied the training needed to gain

whatever knowledge they lacked for promotion. (Id. ¶¶ 19, 21,

28, 29.) Claiming Plaintiff was not knowledgeable enough while

also refusing her training that was allegedly provided to white

employees is all sufficient to permit an inference of

discrimination, creating an issue that cannot be resolved on a

motion to dismiss.

The court concludes that Plaintiff has alleged facts

plausibly supporting the inference that she, an eight-year

veteran of the Guilford County technology department, was

qualified10 for a senior posting in that same department.

b. Discriminatory Intent

Plaintiff has also alleged sufficient facts to support the

fourth element of the prima facie case, discriminatory intent.

“A showing that a member outside of the protected class received

10 Of course, another important qualification for any

internal promotion is that the employee be an employee of the

organization within which she seeks promotion. See Oliver v.

Nat'l Beef Packing Co., LLC, 294 F. App'x 455, 458 (11th Cir.

2008); Johnston v. Centurylink, Inc., No. C11-5588 BHS, 2012 WL

5295147, at *6 (W.D. Wash. Oct. 26, 2012). In both of those

cases, plaintiffs were unable to bring failure to promote claims

since they were not employed at the time the promotion decision

was made. Unlike the present case, however, both of those

decisions were rendered at summary judgment, after the

plaintiffs had a chance to probe the reasons for their

termination. A similar decision would be premature when, as

here, a plaintiff facing a motion to dismiss has plausibly

alleged that her employer was acting with discriminatory intent

leading up to her termination. Prima facie standards are

evidentiary standards, not pleadings standards, and were not

created as “rigid, mechanized or ritualistic” schemes of proof.

Swierkiewicz, 534 U.S. at 512.

a promotion instead of the plaintiff is sufficient to create an

inference of discrimination” and thus survive a motion to

dismiss. McCaskey v. Henry, 461 F. App'x 268, 270 (4th Cir.

2012) (citing Carter, 33 F.3d at 458); Rodriguez v. Elon Univ.,

No. 1:17CV165, 2018 WL 1997987, at *5 (M.D.N.C. Apr. 27, 2018),

aff'd, 751 F. App'x 395 (4th Cir. 2018). Plaintiff alleges that

the position she sought in September 2017 was filled by a white

coworker. (Compl. (Doc. 1) ¶ 30.) Plaintiff also alleges that

the previous senior software engineer position was filled by

another white coworker, and that in her team of four, the two

white employees were chosen over her both times. (Id. ¶¶ 19, 23,

30.) Both facts support a plausible allegation that Plaintiff’s

termination was racially motivated.

Further, if a plaintiff is denied the training necessary

for a promotion that is given to nonminority employees, then

that denial can also serve as evidence of discrimination. See

Alexander, 762 F. Supp. at 795 (discussing a situation where an

African American police officer was denied funding to attend a

certification course); see also Patterson v. McLean Credit

Union, 491 U.S. 164, 217–18 (1989) (Brennan, J., concurring in

part, dissenting in part) (abrogated by statute on other

grounds) (noting that failing to train a plaintiff for a

position can be one of the “innumerable different ways” a

plaintiff can prove intentional discrimination).

When Plaintiff was not promoted in May 2016, she was told

it was because she was “not knowledgeable enough.” (Id. ¶ 26.)

However, when Plaintiff asked for the training she needed to

gain that knowledge, Solomon denied her request. (Id. ¶ 28.)

Such training had been denied to Plaintiff and the other African

American employee in her section, but it had been provided to

the two white employees. (Id. ¶ 19.) Both of those white

teammates were eventually given the jobs for which Plaintiff

applied. (See id. ¶¶ 21, 29, 51.) These facts support an

inference of discriminatory intent.

For these reasons, the court finds that Plaintiff’s First

and Second Claims should be allowed to proceed against Defendant

Guilford County. Regarding individual defendants, as stated

above in Section III.B, Claim One will be dismissed against all

individual defendants, but Claim Two will proceed as to the

individual defendants, as Defendants have failed to put forth a

persuasive argument under the Local Rules.

2. Claims Five and Six: Discrimination Under Title

VII and Section 1981

Plaintiff’s Fifth Claim is for discrimination under Title

VII, and her Sixth Claim is for discrimination under Section

1981. In both claims, Plaintiff alleges that her October 2017

termination was motivated by racial bias. (Compl. (Doc. 1)

¶¶ 69, 74.) Defendants’ counter with factual assertions outside

the Complaint, and some outside their proffered exhibits, to

show that Plaintiff was terminated for violating county

policies. (Defs.’ Br. (Doc. 8) at 7-8.) Defendants rely heavily

on these exhibits, (see id. at 11, 19–20), most of which, for

the reasons stated above, are not proper on a motion to dismiss.

Staying within the Complaint, Defendants do assert that

Plaintiff herself admits to the nondiscriminatory reason for her

firing. (Id. at 20.) For the reasons stated below, the court

finds that Plaintiff has plausibly alleged discrimination claims

under Title VII and Section 1981 relating to her termination.

As with Plaintiff’s claims for failure to promote, her

claims for discrimination under Title VII and Section 1981 are

analyzed under the same framework. See, e.g., Wilson v. Legal

Assistance of N. Dakota, 669 F.2d 562, 563 (8th Cir. 1982); Dove

v. United Parcel Serv., Inc., 912 F. Supp. 2d 353, 361 (M.D.N.C.

2012) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295

(4th Cir. 2004)). Plaintiff offers no direct evidence of

discriminatory intent behind her termination, so she proceeds

under the McDonnell Douglas burden-shifting framework.

Under the McDonnell Douglas framework, a plaintiff must

allege facts allowing the court to infer the following elements:

that “(1) [she is a member of a protected class; (2) [she]

‘suffered an adverse employment action’; (3) [her] job

performance was satisfactory; and (4) the adverse employment

action occurred ‘under circumstances giving rise to an inference

of unlawful discrimination.’” Brown v. Gibson, No. 4:17-CV-180-

FL, 2018 WL 4113339, at *5 (E.D.N.C. Aug. 29, 2018) (quoting

Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 558

(4th Cir. 2011); Griggs v. Casual Corner Grp., Inc., No.

3:02CV277, 2005 WL 1983888, at *7 (W.D.N.C. Aug. 10, 2005); see

Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001) (ADA

case).

The fourth element, discriminatory intent, is satisfied if

“similarly-situated employees outside the protected class

received more favorable treatment.” White, 375 F.3d at 295. An

inference of discriminatory intent can also be made when there

are multiple motives behind an employer’s action; discrimination

need not be the only motivation behind an employer’s adverse

action, but it must have been a “motivating factor.” See Desert

Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003); Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 317 (4th Cir.

2005). What is more, “[a]fter Desert Palace, . . . a plaintiff

need not present direct evidence of discrimination, but must

only present sufficient evidence that racial (or other illegal)

discrimination motivated the employer's adverse employment

decision.” Jones v. Southcorr, L.L.C., 324 F. Supp. 2d 765, 774

(M.D.N.C.), aff'd, 117 F. App'x 291 (4th Cir. 2004). It is not

necessary that a plaintiff show that she was terminated under

circumstances where members outside the protected class were

not; instead, an inference of discrimination can be drawn from

differential treatment leading up to the termination. See

Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 192–93 (4th Cir.

2003) (discussing Desert Palace and noting the series of acts

where plaintiff was treated differently than employees outside

protected class).

Defendants do not contest that Plaintiff is a member of a

protected class or that she suffered an adverse employment

action in the form of her termination. Defendants implicitly

contest the satisfactory-performance prong11 and expressly

contest any inference of discriminatory intent.

Plaintiff alleges facts that give rise to a reasonable

inference of discriminatory motivation in Defendants’ decision

11 Since Defendants do not expressly raise the satisfactory

performance element, the court briefly addresses it here.

Defendants’ version of the events surrounding Plaintiff’s

termination portray her as unqualified in that she allegedly

violated county policies. (Defs.’ Br. (Doc. 8) at 21–22.)

Whatever the merit of Defendants’ claims, at the motion to

dismiss phase, the complaint generally controls, and this

Complaint alleges facts that, when taken as true, portray

Plaintiff as an email administrator accessing inboxes as a part

of her duties. (Compl. (Doc. 1) ¶¶ 33–34.) Further, Plaintiff

alleges she had been an email administrator since 2011, meaning

she had retained her job for almost seven years prior to her

termination. (Id. ¶¶ 14, 37-38.) These facts give rise to the

reasonable inference that her performance had been satisfactory

leading up to the inbox access incident in September/October

2017.

to terminate her. Of the four team members on the email

Enterprise Technology Team, the African American members were

both denied training that would have helped them to advance.

(Compl. (Doc. 1) ¶ 19.) When Plaintiff was told she was “not

knowledgeable enough” for the first senior software engineer

position, she asked for training, only to be denied. (Id. ¶ 28.)

The first senior software engineer position was filled by a

white employee with less experience on the team than Plaintiff.

(Id. ¶ 23.) According to the Complaint, Solomon excluded the

African American employees from emails and meetings and would

speak to them in a disrespectful tone he did not use with white

employees. (Id. ¶¶ 17–19.) The second senior software position

was filled by the other white employee, who had even less

experience than the first and “far less” than Plaintiff. (Id.

¶ 30.)

When Defendants started their initial investigation, they

accused Plaintiff of violating a policy they could not cite or

produce. (Id. ¶ 32.) Plaintiff admitted to accessing the inboxes

of others, but allegedly provided proof that the access was

pursuant to an ongoing technical issue she was helping address.

(Id. ¶ 34.) After she was terminated, Plaintiff was contacted by

concerned coworkers; they were concerned because Solomon had

allegedly been boasting about getting her fired and was even

threatening to have her arrested. (Id. ¶¶ 42–43.)

These facts, taken as true, support a reasonable inference

that Plaintiff’s termination was motivated, at least in part, by

racial animus. The court finds Plaintiff has plausibly alleged a

racially discriminatory motive in her termination. Plaintiff

alleges facts about how African Americans were excluded from

training, meetings, emails, and were denied promotions. That

alleged course of conduct is sufficient, at this stage, to infer

a racially discriminatory motive.

Since Plaintiff has alleged facts that plausibly support

her claim for wrongful termination, Defendants’ motion will be

denied as to Claims Five and Six against Defendant Guilford

County. As stated above in Section III.B, Claim Five will be

dismissed as to all individual defendants, but Claim Six against

individual defendants will proceed.

3. Retaliation: Claims Three, Four, Seven, and Eight

Plaintiff’s Third and Seventh Claims are for retaliation

under Title VII; Claims Four and Eight are for retaliation under

Section 1981. For the reasons explained below, the court finds

that Claims Three, Four, Seven, and Eight should all be

dismissed as against all Defendants.

It is unlawful for an employer to “discriminate against any

of his employees . . . because [the employee] has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing” under Title VII.

42 U.S.C. § 2000e–3(a). “A prima facie retaliation claim under

42 U.S.C. § 1981 has the same elements” as one under Title VII.

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th

Cir. 2015). “To establish a prima facie case of retaliation

. . . , a plaintiff must prove (1) that she engaged in a

protected activity, as well as (2) that her employer took an

adverse employment action against her, and (3) that there was a

causal link between the two events.” Id. (internal citations and

quotations omitted). Defendants do not challenge Plaintiff on

the first or second prong. (Defs.’ Br. (Doc. 8) at 16.) Instead,

Defendants focus their challenge on the causation prong.

Proving causation at the pleading stage is “not an onerous

burden,” and retaliation plaintiffs “do not have to show at the

prima facie stage that their protected activities were but-for

causes of the adverse action.” Strothers v. City of Laurel, 895

F.3d 317, 335 (4th Cir. 2018).12 Still, plaintiffs must allege

facts plausibly supporting an inference of causation, a task

that may be accomplished by alleging facts that show the

12 Defendants are incorrect that Plaintiff must show but-for

causation at this stage in the proceedings. If a plaintiff’s

complaint survives to the pretext stage in the McDonnell Douglas

framework, it is at that point that they must prove but-for

causation. Strothers, 895 F.3d at 335 (citing Foster v. Univ. of

Md.-E. Shore, 787 F.3d 243, 251 (4th Cir. 2015), and noting that

a “plaintiff need not establish but-for causation until pretext

stage of burden-shifting framework”); see also Perkins v. Int'l

Paper Co., 936 F.3d 196, 214 (4th Cir. 2019).

employer took an adverse action “soon after becoming aware” of

protected activity. Id. at 336 (emphasis added); see also Villa

v. CavaMezze Grill, LLC, 858 F.3d 896, 899, 901 (4th Cir. 2017)

(discussing importance of an employer’s subjective knowledge

since an adverse action must be motivated by a desire to

retaliate in order to be actionable); Carter, 33 F.3d at 460

(dealing with termination following notice employee filed EEOC

charge); Welton v. Durham Cty., No. 1:17-CV-258, 2018 WL

4656242, at *3 (M.D.N.C. Sept. 27, 2018), aff'd, No. 18-2340,

2019 WL 4051959 (4th Cir. Aug. 28, 2019) (discussing Strothers,

895 F.3d at 335–36). For these reasons, discriminatory conduct

that continues unchanged after protected activity cannot support

an inference of retaliatory motivation without some further

factual allegations. Hamilton v. Prince George's Cty., Civil

Action No. DKC 17-2300, 2019 WL 4735429, at *5 (D. Md. Sept. 27,

2019) (“[E]ven assuming that harassment sufficient to constitute

an adverse employment action occurred, Plaintiff has by no means

shown that the continuation of Sgt. Manley’s harassment after

her complaints was causally linked to the complaints

themselves.”); see also O'Connor v. Cameron, No. CV DKC 17-3394,

2019 WL 1112281, at *6 (D. Md. Mar. 11, 2019) (finding that a

causal connection exists when “the employer [took] the adverse

employment action because the plaintiff engaged in a protected

activity” (emphasis added) (quoting Dowe v. Total Action Against

Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998));

Blackburn v. Commonwealth of Va. Dep't of Corr., No.

1:01CV00039, 2002 WL 242352, at *4 (W.D. Va. Feb. 19, 2002)

(noting that evidence that a plaintiff’s superiors “treated her

differently soon after the complaint was made” was sufficient to

survive a motion for summary judgment) (emphasis added).

If a plaintiff is proving causation by temporal proximity alone,

the adverse action must be “very close” to the protected

activity. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74

(2001) (per curiam). Gaps of three or four months between

protected activity and an adverse action have been found

insufficient to support an inference of causation in other

cases. See id. (citing, with approval, cases where courts found

periods of three and four months too long); King v. Rumsfeld,

328 F.3d 145, 151 n.5 (4th Cir. 2003) (finding that two-and-a-

half months probably too long a lapse in time, barring other

circumstances that explain the gap). Closer to this case, the

Fourth Circuit has found a lapse of thirteen months too long to

establish causation. Causey v. Balog, 162 F.3d 795, 803 (4th

Cir. 1998) (“A thirteen month interval between the charge and

termination is too long to establish causation absent other

evidence of retaliation.”). If too long a period of time passes

between the protected activity and the retaliatory conduct,

“courts may look to the intervening period for other evidence of

retaliatory animus.” Lettieri v. Equant Inc., 478 F.3d 640, 650

(4th Cir. 2007).

In the present case, more than sixteen months passed

between the time Plaintiff filed her complaint with HR and the

date upon which Defendants opened their investigation, the first

employment action coming close to “materially adverse.”13 (Compl.

(Doc. 1) ¶¶ 24, 31.) Sixteen months is too long a period to

support an inference of causation without some other facts. See

Causey, 162 F.3d at 803; see also Hinds v. Sprint/United Mgmt.

Co., 523 F.3d 1187, 1204 (10th Cir. 2008) (11-month gap too

long); Vasquez v. Cty. of L.A., 349 F.3d 634, 647 (9th Cir.

2003) (13-month gap too long); Bishop v. Bell Atl. Corp., 299

F.3d 53, 60 (1st Cir. 2002) (12-month gap too long). Since

Plaintiff cannot prove causation by temporal proximity alone,

she must allege some conduct that can serve as “evidence of

retaliatory animus” in the period between her HR complaint and

the September 2017 investigation.

Plaintiff alleges that Solomon “seemed particularly angry

with [her] after her grievance and began excluding her from

13 See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 68 (2006) (“In our view, a plaintiff must show that a

reasonable employee would have found the challenged action

materially adverse, which in this context means it well might

have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” (internal quotations and citations

omitted)).

emails and meetings that were necessary for her job.” (Compl.

(Doc. 1) ¶ 27.) Plaintiff also alleges that she was denied

training opportunities. (Id. ¶ 19.) Plaintiff does not specify

when these alleged acts took place, as similar conduct appear to

have occurred throughout Plaintiff’s association with Solomon.

Despite the allegation that Solomon “began” taking

retaliatory action soon after the HR complaint, most of his

conduct14 was actually an unchanged continuation of his conduct

prior to the HR complaint. Prior to Plaintiff’s HR complaint,

14 Plaintiff does argue that the 2016 promotion denial was

also a retaliatory act that provides circumstantial evidence of

retaliatory animus in the interim. (Pl.’s Resp. (Doc. 14) at

22.) There are several problems with this claim. First,

Plaintiff does not allege a date for when she was denied the

position or when Solomon first expressed anger towards her; the

court cannot conclude that Solomon knew about the protected

activity at the time he made a hiring decision. Second, even if

failing to promote in 2016 was retaliatory, it does not

adequately bridge the gap between the protected activity in

April/May 2016 and the retaliatory acts, Defendants’ 2017

investigation of Plaintiff and her termination. Plaintiff does

not allege a date when she was denied the 2016 position, but she

does allege she applied after her HR complaint. (Compl. (Doc. 1)

¶¶ 24, 25.) As stated above, even three or four months can be

too long. It is unlikely Defendants waited until April 2017 to

make a hiring decision about the May 2016 posting. Third, one

act of retaliatory conduct is very different from the patterns

that other courts have relied upon when finding a causal link

over a long period of time. See, e.g., Lettieri, 478 F.3d at

650–51 (noting that a seven-month gap between protected activity

and retaliatory act was filled with retaliatory behavior,

including stripping plaintiff of supervisory responsibilities);

Woodson v. Scott Paper Co., 109 F.3d 913, 920–21 (3d Cir. 1997)

(finding that a two-year gap between protected activity and

retaliatory act was linked by a “pattern of antagonism”).

Solomon excluded “Pouncey and the other African-American

employee from projects, team meetings, and communications.” (Id.

¶ 17.) The white employees also received training while the

African American employee’s requests for training were denied.

(Id. ¶ 19.) Finally, before Plaintiff filed her HR complaint,

Solomon allegedly spoke to African American employees in a

disrespectful tone that he did not use with white employees.

(Id. ¶ 18.) Solomon was allegedly upset with Plaintiff for

complaining to HR, but Plaintiff does not allege that Solomon’s

conduct changed in kind or frequency.

In short, Plaintiff alleges conduct that occurred before

the HR complaint was filed and continued, unchanged, after her

filing. Conduct occurring before a complaint is filed cannot be

motivated by retaliatory animus. Strothers, 895 F.3d at 335; see

also Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 302 (3d

Cir. 2007), as amended (Aug. 28, 2007) (noting that exclusion

from an important meeting, along with other acts, suggestive of

retaliatory animus when conduct occurred after supervisor was

informed of protected activity); Hunt-Golliday v. Metro. Water

Reclamation Dist. Of Greater Chicago, 104 F.3d 1004, 1014 (7th

Cir. 1997) (noting that a “pattern of criticism and animosity”

by plaintiff's supervisors that began almost immediately after

her protected activity could serve as evidence of animus in the

interim). When a plaintiff alleges that conduct occurring prior

to plaintiff’s protected activity continued unchanged, and

provides no other facts supporting an inference of retaliatory

intent in ongoing acts, there can be no reasonable inference of

retaliatory motive. See Hamilton, 2019 WL 4735429, at *5. Though

it is conceivable that Solomon was motivated by a retaliatory

animus following Plaintiff’s HR complaint, she has not alleged

facts that raise that conclusion “above the speculative level.”

Twombly, 550 U.S. at 555.

Finally, even if the court were to infer retaliatory

animus in Solomon’s continuing conduct, Plaintiff does not

allege when these acts occurred. Without any dates or range of

dates, this court is unable to conclude if this conduct

continued up until or shortly before her termination. If the

conduct stopped after a few months, then there would still be a

significant gap in time between Solomon’s last retaliatory act

evincing animus and Plaintiff’s termination.

For these reasons, the court finds that Plaintiff’s claims

for retaliation (Claims Three, Four, Seven, and Eight) should be

dismissed for failing to state a claim. Plaintiff’s retaliation

claims should be dismissed as to all Defendants since Plaintiff

fails to plausibly allege a claim for retaliation.

Iv. CONCLUSION

For the reasons set forth herein,

IT IS HEREBY ORDERED that Plaintiff’s Objections to

Defendants’ Reply, (Doc. 16), is SUSTAINED.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss,

(Doc. 7), pursuant to Rule 12(b) (6) of the Federal Rules of

Civil Procedure, is GRANTED IN PART AND DENIED IN PART. The

motion is GRANTED as to all Defendants as to Claims Three (Title

VII Retaliation), Four (Section 1981 Retaliation), Seven (Title

VII Retaliation), and Hight (Section 1981 Retaliation). The

motion is DENIED as to Defendant Guilford County as to Claims

One (Title VII Failure-to-Promote), Two (Section 1981 Failure-

to-Promote), Five (Title VII Wrongful Termination), and Six

(Section 1981 Wrongful Termination). The motion is GRANTED as to

Defendants Marty Lawing, Hemant Desai, and Jeffrey Solomon as to

Claims One (Title VII Failure-to-Promote) and Five (Title VII

Wrongful Termination) and DENIED WITHOUT PREJUDICE as to Claims

Two (Section 1981 Failure-to-Promote) and Six (Section 1981

Wrongful Termination).

This the 17th day of March, 2020.

*

Ws Akin L. Cahir. f:

United States District Ju

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